ATTORNEYSFor the plaintiff-appellant the cause was submitted on the
briefs of William A. Kirkpatrick of Hale, Skemp, Hanson, Skemp &
Sleik of La Crosse.

Respondent

ATTORNEYSFor the defendants-respondents the cause was submitted on the
brief of James E. Doyle, attorney general and Monica Burkert-Brist, assistant
attorney general and adopted in its entirety by Steve A. Cotton of Stilp,
Cotton and Wells of Wausau.

COURT OF APPEALS

DECISION

DATED AND RELEASED

November 14, 1996

NOTICE

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.See § 808.10 and
Rule 809.62, Stats.

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official Reports.

No.96-0622

STATE
OF WISCONSININ COURT OF
APPEALS

HOWARD G. LANGHUS,

Plaintiff-Appellant,

v.

WISCONSIN LABOR AND INDUSTRY REVIEW

COMMISSION, EMPLOYERS INSURANCE OF WAUSAU

AND CITY OF WESTBY,

Defendants-Respondents.

APPEAL from a judgment
of the circuit court for Vernon County:MICHAEL J. ROSBOROUGH, Judge.Affirmed.

Before Eich, C.J.,
Vergeront and Deininger, JJ.

DEININGER,
J. Howard Langhus appeals from a judgment affirming the
decision of the Wisconsin Labor and Industry Review Commission (LIRC) denying
his claim for benefits for permanent total disability.Langhus claims that LIRC exceeded its
authority by requiring him to bear the burden of establishing the portion of
his permanent disability attributable to an unscheduled injury.Because we conclude that LIRC's denial of
permanent total disability benefits is consistent with statutes and case law
governing permanent disability determinations, and with LIRC's own past
practice and interpretations, we affirm.

BACKGROUND

On January 5, 1990,
Howard Langhus, while employed as a trash collector for the City of Westby,
slipped on ice while getting out of a garbage truck and fell, twisting his left
knee.He continued to work throughout
the spring and summer despite pain caused by his knee injury.In September, a physician diagnosed a torn
medial meniscus of the knee and Langhus had arthroscopic surgery.He returned to work part-time under doctor's
restrictions on the amount of weight he would be allowed to lift.Even with the restrictions, Langhus was
unable to remain at work because of continuing pain in his knee.

Approximately three months
later, Langhus injured his shoulder and reinjured his knee when he caught a man
who collapsed in church.He remained
unable to return to work due to the pain in his knee and shoulder.He had surgery for a rotator cuff tear in
his shoulder in July 1991.In November
1991, a physician noted Langhus' gait had changed due to his knee problem,
resulting in back pain.Langhus
eventually developed reflex sympathetic dystrophy (RSD) in his right leg, which
migrated to his back and other leg.

Langhus filed an
application for hearing in August 1993, claiming permanent total disability due
to the pain and injuries in his back, shoulder and legs.The City of Westby and its insurer conceded
a ten percent permanent partial disability of the knee as compared to amputation
at the knee, and paid him temporary disability benefits and benefits for the
permanent partial disability.[1]

At the hearing, a
physician testified that Langhus was permanently and totally disabled for
vocational purposes due to the knee injury and the RSD.Also received in evidence were the reports
of a physician and two vocational experts who concluded that, based on all of
Langhus' injuries, he was probably totally and permanently disabled for
employment purposes.[2]

The Administrative Law
Judge (ALJ) determined that "[i]t appears from the evidence that the
applicant may be permanently and totally disabled" and that "it
appears clear that the applicant's knee problems and his shoulder problems all
of which cause him pain play a substantial part in his present
incapacitation."The ALJ denied
the claim for permanent total disability, however, because "the only
injury ... which could be considered in determining his loss of earning
capacity is his back injury" and "the record is devoid of any
permanency rating with respect to the applicant's back nor are there ... any
permanent restrictions with reference to his back."

Langhus petitioned for
review by LIRC.LIRC adopted the ALJ's
findings and order, concluding that the claim required an assessment of lost
earning capacity based specifically on the back injury as well as evidence of
work restrictions due to the back.LIRC
found that Langhus had failed to make either showing.Langhus appealed LIRC's decision and the trial court affirmed.

WORKER'S COMPENSATION FOR PERMANENT DISABILITY

A worker who is injured
on the job and claims to have a permanent disability at the end of the healing
period may seek benefits for the permanent disability.See § 102.44(2)-(4), Stats.If the permanent disability stems from an injury "scheduled"
under §§ 102.52, 102.53 or 102.55, Stats.,
(generally injuries to the extremities and impairments of sight and hearing)
the benefits are determined according to the statutory schedules.Section 102.44(4).[3]The schedules provide a certain number of
benefit weeks for each type of injury.Benefits for an injury resulting in less than a total loss of function
to a body part are calculated according to the percentage loss of function to
that part.Section 102.55(3).

If a worker's permanent
disability, however, is from an injury not included on the schedule (e.g., a
back injury), benefits are based on the worker's loss of earning capacity.Kurschner v. DILHR, 40 Wis.2d
10, 18, 161 N.W.2d 213, 217 (1968).If the
permanent disability is less than total, benefits are calculated by determining
the severity of the injury as compared to an injury that would render a person
permanently and totally disabled for industrial purposes, and then applying the
percentage loss of earning capacity to one thousand weeks.Section 102.44(3), Stats.;[4]Kurschner, 40 Wis.2d at 18 & n.4, 161 N.W.2d at 217.

For permanent
disabilities stemming from scheduled injuries, loss of earning capacity is not
relevant.Section 102.44(4), Stats., provides that "[w]here the
permanent disability is covered by ss. 102.52, 102.53 and 102.55, such
sections shall govern."The
statute does not differentiate between permanent total disability and permanent
partial disability.Thus, even if a
worker is totally permanently disabled for employment purposes (i.e., has lost
one hundred percent of his or her earning capacity), if the loss is due to a
scheduled injury, he or she may only receive the scheduled benefits.SeeMednicoff v. DILHR,
54 Wis.2d 7, 11-12, 194 N.W.2d 670, 672 (1972).[5]

Finally, where a worker
is permanently and totally disabled due to (1) an unscheduled injury, (2)
certain enumerated combinations of scheduled injuries, or (3) "in other
cases" as determined by the Department of Workforce Development (DWD),
compensation is weekly for life:[6]

In case of permanent total disability
aggregate indemnity shall be weekly indemnity for the period that the
employe[e] may live.Total impairment
for industrial use of both eyes, or the loss of both arms at or near the shoulder,
or of both legs at or near the hip, or of one arm at the shoulder and one leg
at the hip, constitutes permanent total disability.This enumeration is not exclusive, but in other cases the
department shall find the facts.

Section
102.44(2), Stats.

With the foregoing as a
backdrop, we now turn to the specific issues of Langhus' appeal.

ANALYSIS

Langhus claims a
permanent total disability due to both a scheduled injury, his left knee, and
an unscheduled injury, his back.He
argues that because there is evidence he is permanently and totally disabled
overall, § 102.44(2), Stats.,
applies, and he is thus entitled to benefits for life.LIRC determined, however, that Langhus had
failed to show what portion of his disability was due to each of his scheduled
knee injury and his unscheduled back injury.LIRC, citing Mednicoff v. DILHR, 54 Wis.2d 7, 194 N.W.2d
670 (1972), concluded that without evidence from which it could determine the
percentage of overall disability due to the back injury, it could not award
benefits beyond the schedule allowance for the knee injury.

We review LIRC's
decision, not that of the trial court.Stafford
Trucking, Inc. v. DILHR, 102 Wis.2d 256, 260, 306 N.W.2d 79, 82 (Ct.
App. 1981).We do not weigh the
evidence or pass upon the credibility of the witnesses; LIRC's findings of fact
will be upheld on appeal if they are supported by credible and substantial
evidence in the record.Section
102.23(6), Stats.; seeApplied
Plastics, Inc. v. LIRC, 121 Wis.2d 271, 276, 359 N.W.2d 168, 171 (Ct.
App. 1984).

We are not bound by
LIRC's legal conclusions, DHSS v. LIRC, 159 Wis.2d 300, 309, 464
N.W.2d 74, 77 (Ct. App. 1990), and we will review its conclusions of law de
novo when the case is one of first impression.Kelley Co. v. Marquardt, 172 Wis.2d 234, 245-46, 493
N.W.2d 68, 73-74 (1992).In certain
situations, however, we defer to LIRC's interpretation of a statute.State ex rel. Parker v. Sullivan,
184 Wis.2d 668, 699, 517 N.W.2d 449, 460-61 (1994).When the following four requirements are met, we will accord
LIRC's interpretation great weight:

"(1) the agency was charged by
the legislature with the duty of administering the statute;
(2) ... the interpretation of the agency is one of long-standing;
(3) ... the agency employed its expertise or specialized knowledge in
forming the interpretation; and (4) ... the agency's interpretation
will provide uniformity and consistency in the application of the
statute."

Langhus argues that
because this case presents a "novel question of law" and because
LIRC's interpretation contravenes § 102.44, Stats., we should employ de novo review.We disagree.LIRC is charged with reviewing worker's compensation
determinations under Chapter 102, Stats.,
and it has expertise and specialized knowledge in the subject matter of that
chapter.See § 101.04, Stats.LIRC has consistently interpreted § 102.44 to require apportionment
between scheduled and unscheduled injuries in analogous cases of permanent
partial disability, and this interpretation has been upheld by the Wisconsin
Supreme Court. SeeVande Zande v. DILHR, 70 Wis.2d 1086,
1091-93, 236 N.W.2d 255, 258 (1975); see alsoMednicoff v. DILHR,
54 Wis.2d 7, 13-14, 194 N.W.2d 670, 673 (1972).[7]We
will therefore defer to LIRC's interpretation if it is reasonable, even though
other interpretations may be equally, or even more, reasonable.SeeUFE, 201 Wis.2d at
287 & n.3, 548 N.W.2d at 62-63; Carrion Corp. v. DOR, 179
Wis.2d 254, 264-65, 507 N.W.2d 356, 359 (Ct. App. 1993).

In Vande Zande v.
DILHR, 70 Wis.2d 1086, 236 N.W.2d 255 (1975), the supreme court held
that where a claimant is permanently partially disabled as a result of both
unscheduled and scheduled injuries, under § 102.44(4), Stats., LIRC may require that the
portion of the permanent disability attributable to the scheduled injury be
determined and compensated separately from that attributable to the unscheduled
injury.Vande Zande had sought four hundred
weeks of benefits for his forty percent permanent partial disability
attributable to head injuries which caused loss of hearing, dizziness and other
effects.The Department of Industry,
Labor and Human Relations, however, apportioned one-half of his permanent
disability to the hearing loss, a scheduled injury, and awarded fifty-five
weeks of benefits per the schedule for that portion of the disability.The remaining half of his disability,
equivalent to twenty percent permanent partial disability, was attributed to
the unscheduled head injuries, for which the claimant was awarded two hundred
weeks of benefits.In upholding this
determination, the supreme court said:

In the instant case, the applicant
suffered a loss specifically recognized and compensable under sec. 102.52.

If
a loss is sustained which is recognized by and compensable under [the
schedule], the schedule therein is exclusive.Sec. 102.44(4), provides in part, that:

(4) Where the permanent disability is
covered by the provisions of section[s] 102.52, ... such section[s]
shall govern;...

That
this language rendered exclusive the statutory schedule for certain specific
losses listed in sec. 102.52 was recognized by this court in Mednicoff v.
ILHR Department (1972), 54 Wis. 2d 7, 14, 194 N. W. 2d 670.In the instant case, the additional physical
effects of deafness sustained in one ear have not been ignored by the
department.They form the basis for the
award of benefits of 20 percent permanent partial disability.The scheduled benefits for total loss of
hearing in one ear are applicable and exclusive in this situation.

Vande
Zande, 70 Wis.2d at 1093, 236 N.W.2d at 258.

Thus, if Langhus had
claimed permanent partial disability, LIRC could properly require him to submit
evidence indicating what portion of his disability was due to an unscheduled,
as opposed to a scheduled, injury.However, Langhus claims permanent total disability, a one hundred
percent loss of earning capacity.[8]He argues that § 102.44(2), Stats., obviates the need to apportion
between disability attributable to a scheduled injury and that attributable to
an unscheduled injury because lifetime benefits will be paid.According to Langhus, it makes no difference
how many weeks of benefits are deemed compensation for the scheduled knee
injury because the benefits continue indefinitely.

LIRC interprets
§ 102.44(4), Stats., to
require the same apportionment between scheduled and unscheduled injuries for
permanent total disability as was upheld for permanent partial disability in Vande
Zande, 70 Wis.2d at 1093, 236 N.W.2d at 258.We conclude that LIRC's interpretation is reasonable.Section 102.44(4) requires that scheduled
compensation be exclusive in all cases of "permanent
disability."The statute makes no
distinction between permanent partial disability and permanent total
disability.[9]Langhus has not suggested a more reasonable
interpretation of § 102.44.He
urges that lifetime benefits be awarded him for permanent total disability
because some unspecified portion of his disability is attributable to an
unscheduled injury, notwithstanding the fact that the disability is also
attributable in part to a scheduled injury.This interpretation ignores the mandate of § 102.44(4) and Mednicoff
v. DILHR, 54 Wis.2d 7, 11-12, 194 N.W.2d 670, 672 (1972), that
compensation for loss of earning capacity may not be awarded for scheduled
injuries.Such an interpretation would
also be a significant departure from LIRC'S past practice and interpretations
of chapter 102.

We conclude that LIRC
did not exceed its authority in placing the burden on Langhus to prove that an
ascertainable portion of his total disability was attributable to other than a
scheduled injury.

Langhus next argues that
even if apportionment is required, he has met his burden of proof.The weight and credibility of the evidence
is to be determined by LIRC.Section
102.23(6), Stats.We must uphold LIRC's findings of fact if
supported by substantial and credible evidence.Section 102.23(6). A
claimant in a worker's compensation case has the burden of proving the elements
of his or her claim.Bretl v.
LIRC, 204 Wis.2d 93, 99, 553 N.W.2d 550, 552 (Ct. App. 1996).

LIRC adopted the
findings of the ALJ, who found that Langhus had not introduced sufficient
evidence from which the portion of his disability due to his back injury could
be determined.[10]Langhus was examined by several medical
doctors and two vocational experts.Some of the experts placed physical work restrictions on Langhus and
reported that he is totally and permanently disabled for vocational
purposes.Langhus, however, does not
cite to any portion of the record indicating an estimation, or facts from which
an estimation might be made, of the portion of his disability due to his
back.Instead, he suggests we adopt
an "artificial apportionment,"attributing some unspecified portion of his overall disability to his
scheduled knee injury[11]
and "the remainder of his disability" to his unscheduled back
injury.Neither LIRC nor we may rest a
compensation award upon such a speculation.SeeKurschner v. DILHR, 40 Wis.2d 10, 19-20, 161
N.W.2d 213, 218 (1968) (general statements about the ability of the claimant to
earn a living are insufficient to support a claim for compensation).

If Langhus' medical and
vocational evidence were that all, or virtually all, of his loss of earning
capacity is attributable to the back injury, LIRC may have been able to
conclude that the back injury, coupled with the knee injury, produced a
permanent total disability under § 102.44(2), Stats.The record is
vastly different however.If anything,
the evidence indicates that a substantial portion of Langhus' permanent
disability stems from his scheduled knee injury.There was thus a legitimate doubt as to Langhus' entitlement to
compensation for permanent total disability stemming from other than a
scheduled injury, and LIRC had a duty to deny compensation.SeeBumpas v. DILHR, 95
Wis.2d 334, 342-43, 290 N.W.2d 504, 507-08 (1980).

We conclude that LIRC
has not exceeded its authority in denying Langhus benefits for permanent total
disability, and we thus affirm the judgment of the trial court.

By
the Court.—Judgment affirmed.

[1] Langhus
also stated at the hearing that he was claiming additional permanent partial
disability on his right knee of thirty percent.The Administrative Law Judge determined that there was no support
for Langhus' claim for additional permanent partial disability of the
knee.Langhus does not appeal this portion
of the ruling.

[2] One
other physician's report was admitted, but the report did not discuss Langhus'
vocational abilities.

[3] Section
102.44(4), Stats., provides:

Where the permanent
disability is covered by ss. 102.52, 102.53 and 102.55, such sections shall
govern; provided, that in no case shall the percentage of permanent total
disability be taken as more than 100 per cent.

[4] Section
102.44(3), Stats., states:

For permanent partial
disability not covered by ss. 102.52 to 102.56, the aggregate number of weeks
of indemnity shall bear such relation to 1,000 weeks as the nature of the
injury bears to one causing permanent total disability ....

[5] Wisconsin
is among a minority of states adhering to the "doctrine of
exclusiveness," by which the schedule allowances are deemed exclusive even
where a scheduled injury has caused a total loss of earning capacity.See 1C Arthur Larson, The Law of Workmen's Compensation
§§ 58.20 and 58.23 (1996).The
dominant trend is to regard the schedule as nonexclusive and to allow an agency
to award more than the schedule where a scheduled injury causes pain to
additional parts of the body, id. at § 58.21, or to award
permanent total disability where a scheduled injury causes total loss of
earning capacity.Id. at
§ 58.23.The nonexclusivity trend
is discussed favorably in Larson:

To
refuse total disability benefits in such a case, when total disability is
otherwise established ... has the effect of ruling out the
inability-to-get-work element in a listed group of injuries which just happen
to take the form of a neatly classifiable loss of a member.... [I]t is
difficult to see why this factor [earning capacity] is relevant in case of loss
of a lung but not in case of loss of a leg.

[7] We
note further that LIRC has required similar apportionments of disability
between scheduled and unscheduled injuries in Soper v. LIRC, No.
87-0167 (Wis. Ct. App. Aug. 5, 1987) and in Steberger v. Mayfair Chrysler
Plymouth, Claim No. 92006315, 1994 WL 728550 (LIRC Dec. 21, 1994).These decisions are noted not as precedent
but to show that LIRC's interpretation of § 102.44, Stats., is consistent and
longstanding.See alsoWis. Adm. Code § DWD 80.50(2) (benefit
weeks attributable to scheduled disabilities shall be deducted from one
thousand weeks before computing benefit weeks for a nonscheduled disability
resulting from the same injury).

[8] The
parties disagree whether Langhus claimed a permanent total disability under
§ 102.44(2), Stats.,
(Langhus' contention) or a permanent partial disability (LIRC's
contention).Both have support in the
record.If it is a permanent partial
disability case, Vande Zande v. DILHR, 70 Wis.2d 1086, 236 N.W.2d
255 (1975), decides it adversely to Langhus.LIRC adopted the ALJ's findings, which included:"In this proceeding the applicant is
claiming permanent total disability...." and "It appears from the
evidence that the applicant may be permanently and totally disabled."Given these findings, we concur with Langhus
that we must address whether LIRC was within its authority in denying his claim
for permanent total disability benefits.

[9] We
note that LIRC's interpretation does not preclude a claimant who can prove
total disability, stemming from both scheduled and unscheduled injuries, from
receiving lifetime benefits.Section
102.44(2), Stats., specifically
provides that certain combinations of scheduled injuries are deemed to
constitute permanent total disability.In other situations, DWD is directed to "find the facts."There is no reason, therefore, that a
claimant with both scheduled and unscheduled injuries could not establish facts
that would allow LIRC to award benefits for permanent total disability under
§ 102.44(2).The burden of making
that showing, however, rests on the claimant.SeeBumpas v. DILHR, 95 Wis.2d 334, 342-43, 290
N.W.2d 504, 507-08 (1980).

[10] As
discussed above, benefits for an unscheduled injury are based on loss of
earning capacity.Kurschner v.
DILHR, 40 Wis.2d 10, 18, 161 N.W.2d 213, 217 (1968).In Pfister & Vogel Tanning Co. v.
DILHR, 86 Wis.2d 522, 528, 273 N.W.2d 293, 296 (1979), the supreme
court held that "as to non-schedule injuries `any award for permanent
partial disability must be based upon some kind of a prediction as to the
impairment of earning capacity.'"We have previously held that the prediction of loss of earning capacity
"need not be presented by an employment expert; a qualified physician and
even the Department itself can determine the percentage of such disability."Bituminous Cas. Co. v. DILHR,
97 Wis.2d 730, 736, 295 N.W.2d 183, 187 (Ct. App. 1980).

[11] Langhus
states in his brief that "[a] 10% disability of the knee ... would be 42.5
weeks .... The remainder of his disability would be attributable to the
unscheduled injury."The ten
percent disability figure represents the percentage disability of Langhus' knee
compared to amputation of the knee.See
§ 102.55(3), Stats.It does not indicate what portion of
Langhus' overall disability is attributable to his knee.